December 8, 2018 by Robert Franklin, Member, National Board of Directors, National Parents Organization
Reauthorization of the Violence Against Women Act will be considered by Congress in 2019. The reauthorization bill, H.B. 6545, is dangerously flawed and must be substantially amended. It contains a definition of domestic violence that is almost certainly unconstitutional, makes behavior actionable that non-violent couples routinely engage in and that can be part of healthy adult relationships. It likely would worsen domestic violence by overburdening police and courts with non-serious claims while increasing state intervention into family life.
Here is the definition proposed by H.B. 6545:
The term ‘domestic violence’ means a pattern of behavior involving the use or attempted use of physical, sexual, verbal, emotional, economic, or technological abuse or any other coercive behavior committed, enabled, or solicited to gain or maintain power and control over a victim…
People who commit domestic violence can experience a range of punitive measures. They can be forced to vacate their residence, be separated from their children, charged with a crime, convicted thereof and incarcerated. They can be placed under a court order restricting where they can go and with whom they can associate. They can lose jobs and the right to possess a firearm.
In short, how we define domestic violence can have grave consequences for everyday people.
H.B. defines various forms of protected speech as domestic violence and so runs afoul of the First Amendment. The terms “verbal” and “emotional” refer either explicitly or necessarily to speech, while the definitions of “economic abuse” and “technological abuse” include speech. Given the long history of Supreme Court pronouncements on what constitutes protected speech, there is no doubt that H.B. 6545 violates the free speech provisions of the First Amendment.
For example, the 1971 case of Organization for a Better Austin v. Keefe and the 1982 case of NAACP v. Claiborne Hardware Co. demonstrate that even speech that is coercive is protected from prior governmental restraint as long as it doesn’t exhort others to violence. And of course offensive speech is likewise protected. Put simply, spouses can verbally berate each other without fear of governmental reprisal.
Further, H.B. 6545’s definition is constitutionally void for vagueness and overbreadth. Words like “verbal abuse,” “emotional abuse,” “technological abuse,” “coercive,” “enabled” and “power and control” are all subject to a wide range of imprecise interpretations. The Supreme Court has explained the void for vagueness doctrine thus:
The Government violates the Due Process Clause when it takes away someone’s life, liberty, or property under a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or is so standardless that it invites arbitrary enforcement.
H.B. 6545 would do exactly that.
But H.B. 6545’s deficiencies don’t end there. Even if the bill were constitutional, it still seeks to criminalize everyday constructive interaction between partners and spouses. Does a man, mindful of his family’s limited financial resources, repeatedly plead with his wife to reduce her spending on non-essential items? If he does, he violates H.B. 6545 and can be arrested and barred from his home and family.
Does a woman, suspecting her husband may be unfaithful, open his emails in search of incriminating evidence? If so, she violates H.B. 6545 and can be arrested and barred from her home and family.
Does a mother, in an effort to improve her daughter’s grades, restrict her access to social media? She’s committed domestic violence against the girl, according to H.B. 6545.
Meanwhile, the wife who shoots her husband with a 12-gauge shotgun does not commit DV. Why? Because she’s never been violent toward him before and H.B. 6545 demands a “pattern” of behavior. Indeed, it’s one of the bill’s major shortcomings that, in any court case in which DV is alleged, it would be insufficient for the state to prove a single incident of DV.
Finally, H.B. 6545 stands to make the domestic violence situation worse, not better. By vastly expanding the definition of DV, it threatens to overburden already-strapped police departments, district attorney’s offices and courts. Perhaps worse, it invites ever greater intervention by the state into the family. That can be justified when a family member is truly at risk of harm, but H.B. 6545 opens families up to intervention by the police on the slimmest of pretexts.
The National Parents Organization opposes domestic violence and calls for a sensible, constructive approach to reducing its incidence. Who commits domestic violence, why they do and how to treat perpetrators so they don’t reoffend is by now fairly well understood by the mental health community. We must put aside the ideology that H.B. 6545 embodies and promote the therapeutic treatment of DV offenders while providing safety and security to victims.
H.B. 6545, in its current form, will do none of that. It must be amended to provide fact and science-based approaches to domestic violence that will constitutionally work to reduce the incidence of DV.